Breadcrumbs

EC-COI-94-10

November 8, 1994

FACTS:

The Governor's Advisory Commission on Domestic Violence("Advisory Commission") was established in July, 1993, pursuant toExecutive Order No. 357. It succeeded the Domestic Violence PolicyGroup ("DVPG") created in 1992 by Executive Order No. 334. TheAdvisory Commission's work was broadened from that of DVPG toinclude the response of the health, human services, educational andbusiness communities, as well as law enforcement and the judiciary,to the problem of domestic violence. The Advisory Commission ischarged with preparing recommendations regarding domestic violence,evaluating the success of state agencies and other public entitiesin responding to domestic violence victims, and recommending policyinitiatives to improve services for victims and batterers. TheExecutive Order does not specify a formal work product to beprepared or completed by the Advisory Commission. The Governor andexecutive branch agencies are not required to adopt or implementany of the Advisory Commission's recommendations.

Under the Executive Order, the Advisory Commission iscomprised of the Lieutenant Governor or his designee, the Secretaryof Public Safety or her designee, the Secretary of Health and HumanServices or his designee, and at least one representative from eachof the following: the Attorney General's Office, the districtattorneys, victims' assistance agencies, police departments,certified batterers' treatment programs, the Trial Court and suchother members as the Governor may appoint. At this time, theAdvisory Commission includes the Commissioner of the Department ofProbation, the Commissioner of Public Health, the Secretary ofEducation, several legislators, advocates for the victims ofdomestic violence and several service providers. The inclusion of"private members" (i.e., victim advocates and service providers) isdesigned to give the Advisory Commission a fuller understanding ofand appreciation for the unique issues facing providers of servicesto both batterers and their victims. These private members providethe Governor with opinions and expertise which is not otherwiseavailable within the Executive Branch.

The Executive Order designates the Lieutenant Governor asChairman of the Advisory Commission. There is no fixed number ofmembers, term of service, or required number of meetings per year.Members serve at the discretion of the Governor. The orderspecifies no voting protocol. In practice, the Commission has maderecommendations based on a simple majority of those present, andhas no established quorum. Several subcommittees have beenestablished, and a number of interested parties who have not beenofficially appointed are participating in the work of thesubcommittees. Parties who have previously worked with thesubcommittees include executive branch employees who have beencalled upon to lend their expertise to the subcommittees, otherinterested public employees such as district attorneys and stateand local police, and private individuals such as advocates andvictims. The Executive Director of the Advisory Commission, whichis not a formal position, is a state employee. None of the"private members" of the Commission are compensated for their workor reimbursed for their expenses, nor do they expend or controlpublic funds as members of the Advisory Commission.

Recently, the Advisory Commission has become increasinglyactive in providing recommendations to a wide range of governmentalbodies on issues involving domestic violence. Theserecommendations have focused on developing legislation, policiesand programs to coordinate better the work between the criminaljustice system and the social service programs. The following isa summary of these recent activities:

(1) Batterers' Treatment Subcommittee: This subcommittee,co-chaired by the Commissioner of the Department of Public Health("DPH"), has been reviewing the guidelines for the certification ofbatterers' treatment programs by DPH. Pursuant to the AbusePrevention Act, 1990 Mass. Acts c. 403, a special judicialcommission was created to develop batterers' treatment programcertification standards and guidelines. The initial set ofguidelines provided that DPH could develop additional guidelinesand could amend the current ones. Under c. 403 of the Acts of1990, DPH has ongoing responsibility for certification andmonitoring of batterers' treatment programs. Working with theWomen's Health Division of DPH and with the Advisory CommissionSubcommittee, DPH has developed a set of proposed amendments to thecurrent guidelines and DPH will be holding public hearings beforefinalizing the guidelines.

(2) Transition Subcommittee: This subcommittee has developeddraft guidelines for visitation centers. The guidelines, which aregeneral in nature, include recommendations for the training ofpersonnel and standard procedures for dealing with victims andbatterers. In addition, the Subcommittee will review a needsassessment study conducted by Abt Associates on behalf of theDepartment of Social Services ("DSS").[1] That study identifiesthe most pressing

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needs in shelters and related service programs. The Subcommitteewill evaluate, research and develop programmatic recommendationsconcerning gaps in services, which, pursuant to outside section 51of Chapter 126 of the Acts of 1994 (the final supplementaryappropriations bill for fiscal year 1994),[2] will be forwarded tothe House and Senate Committees on Ways and Means.

(3) Uniform Enforcement Subcommittee: This subcommittee hasdrafted and circulated suggested guidelines for district attorneysin handling domestic violence cases. The Subcommittee hasincorporated into its draft guidelines comments it has receivedfrom the district attorneys. In addition, the Subcommittee hasprepared guidelines for police in responding to domestic violenceincidents, including standardized report forms and investigationchecklists.[3] This work has involved the Domestic Violence Unit ofthe State Police. Both sets of guidelines have been approved bythe Advisory Committee and are being forwarded to districtattorneys and local police departments to use at their owndiscretion.

(4) Legislation Subcommittee: This subcommittee has reviewedall legislation relative to domestic violence, and has presented anoverview to the Advisory Commission. Based on the Subcommittee'srecommendations, the Advisory Commission has endorsed a number oflegislative initiatives. The Advisory Commission's endorsement wascited by the Administration in an effort to gain passage oflegislation. Subcommittee members have also worked on draftlegislation regarding long-term housing assistance for victims ofdomestic abuse.

(5) Community Education Subcommittee: This subcommittee ispreparing recommendations on violence in teen dating. Theserecommendations will likely focus on the role of the ExecutiveOffice of Education ("EOE") in assisting schools to prevent datingviolence. For example, the Advisory Commission may recommend thatthe EOE provide schools with information concerning programs andservices on teen dating violence.

(6) Other Advisory Commission Projects: The AdvisoryCommission is involved in serving as a clearinghouse for "bestpractices" and new initiatives to combat domestic violence. Usingfunding from the Massachusetts Commission on Criminal Justice("MCCJ"), the Advisory Commission and the MCCJ have produced anddistributed a domestic violence newsletter.[4] Finally, theAdvisory Commission has made recommendations to the Governorconcerning Administration budget requests.

QUESTIONS:

1. Will Advisory Commission members, who are not otherwisestate employees (so-called "private members"), be consideredspecial state employees for purposes of the conflict of interestlaw?

2. If yes, what limitations will G.L. c. 268A place on theactivities of those Advisory Commission members?

ANSWERS:

1. Yes, private members will be considered special stateemployees.

2. As special state employees, the private activities ofprivate members will be restricted by the conflict of interest lawin a limited manner as detailed below.

DISCUSSION:

1. Jurisdiction

For purposes of the conflict of interest law, a state employeeis defined as "a person performing services for or holding anoffice, position, employment, or membership in a state agency,[5]whether by election, appointment, contract of hire or engagement,whether serving with or without compensation, on a full, regular,part-time, intermittent or consultant basis, including members ofthe general court and executive council." G.L. c. 268A, s.1(q).

As we recently stated in EC-COI-93-22, we examine four factorsin determining whether an advisory committee will be considered astate agency or instrumentality thereof. Those factors are:

1) the impetus for the creation of the committee (whetherrequired by statute, rule, regulation or otherwise);

2) the degree of formality associated with the committee andits procedures;

3) whether members of the committee perform functions ortasks expected of government employees, or will they beexpected to represent outside viewpoints; and

4) the formality of the committee's work product, if any.EC-COI-86-4; 86-5.

Examining the Advisory Commission in light of these fourfactors, we begin by noting that the

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Advisory Commission was created by the Governor by executive orderas opposed to by statute, rule, or regulation. See EC-COI-83-21(task force set up by governor on his own initiative, as opposed tostatutory requirement, was not a public entity); contrast EC-COI-82-157 (advisory council established by G.L. c. 7, s.40M on apermanent basis, rather than a temporary or ad hoc basis, resultedin finding of state employee status for members). We havepreviously been more inclined to find a public instrumentalitywhere a committee is a permanent and mandatory component to theimplementation of a state statute. See EC-COI-87-17 (WaterResources Management Advisory Committee of the Department ofEnvironmental Quality Management established as a mandatorycommittee under St. 1985, c. 592); 86-4 (Administrative PenaltiesAdvisory Committee mandatory and permanent committee pursuant tostate statute). Here, in contrast, the Advisory Commission existssolely at the pleasure of the Governor and exists only so long ashe deems it necessary and useful. Thus, it is neither mandatorynor permanent. However, this factor alone is not dispositive.

Our examination of the Advisory Commission in light of theremaining factors leads us to conclude that its structure, and moreimportantly, the tasks it performs, distinguishes it from thecouncil analyzed in EC-COI-93-22, which we determined to beadvisory in nature. We find that the Advisory Commission functionswith a higher degree of formality than traditional advisorycommittees. Here, the Lieutenant Governor is designated byExecutive Order as the chairman. The Advisory Commission isorganized into various subcommittees, each of which functions tocarry out specific tasks. Although the Governor's Executive Orderdoes not specify the total number of members, it does require theappointment of specific members, many of whom are public employeeswho are statutorily required to devise and administer programsregarding domestic violence. The Executive Order thereforecontemplates a committee with a particular structure. Finally, wefind significant that the Advisory Commission functions with theassistance of an executive director, who is a state employee. Incontrast, the council in EC-COI-93-22 did not have members who wereotherwise employed by the Commonwealth. Moreover, that council didnot have a chair designated by the Governor, nor did it utilize theservices of a state employee as executive director.

We also find that the Advisory Commission members performtasks ordinarily expected of public employees, rather than servingto represent outside viewpoints. See EC-COI-87-17; EC-COI-86-5(advisory committee, set up to ensure that agency receives theinformed opinions of a broad spectrum of the local populationconcerning the impact of an agency program, would not be publicinstrumentality); contrast 86-4 (finding state agency status wherepermanent committee's principal function is to assist in thedrafting of regulations, a task ordinarily engaged in by publicemployees). In EC-COI-93-22, we found that members of an advisorycouncil principally served to provide the Governor with outsideviewpoints concerning the Massachusetts economy and the status ofindustry in the Commonwealth. Here, not only are a significantportion of the Advisory Commission members, as it is currentlyconstituted, otherwise employed by the Commonwealth,[6] but also,in examining the functions of the Advisory Commission, we findthat, through subcommittees, the Commission performs tasksordinarily expected of public employees. Rather than merelyserving as a "sounding board" to provide the Governor with avariety of outside viewpoints, the Advisory Commission was createdto address "a need to coordinate and integrate policy on allaspects of domestic violence at the highest levels of stategovernment and to broaden the scope of the Commission's inquiry toinclude the response of the health, human services, educational andbusiness communities."[7] Pursuant to the Executive Order, theAdvisory Commission is required to consider the need for furtherlegislation concerning domestic violence, evaluate on a continuingbasis the governmental (law enforcement, judicial, health and humanservice systems) response to victims, consider further policyinitiatives to enhance interagency communication and cooperation,and consider measures to prevent and reduce the incidence ofdomestic violence through public education. These goals aresimilar to those imposed on government agencies within theCommonwealth. See St. 1990 c. 403, s.14-16. For example, theBatterers' Treatment Subcommittee, which is chaired by theCommissioner of DPH, is reviewing current guidelines for thecertification of batterers' treatment programs by DPH. DPH,working with this Subcommittee, has prepared a set of proposedamendments to the current guidelines. DPH is planning to hold apublic hearing on the guidelines before finalizing them. We notethat, pursuant to statute, DPH is charged with amending current,and promulgating additional, guidelines. The work of theSubcommittee on this issue amounts to working with the DPH on astatutorily mandated task.

Similarly, the Transition Subcommittee planned to review aneeds assessment, conducted privately on behalf of DSS, whichidentified the most pressing needs in shelters and relatedservices. Pursuant to s.51 of Chapter 126 of the Acts of 1994, theSubcommittee would then evaluate the research, and developprogrammatic recommendations identifying gaps in

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service. These recommendations were required to be forwarded tothe House and Senate Committees on Ways and Means by October 1,1994. We find that this statutory requirement constituteslegislative recognition that the Advisory Commission (through itssubcommittees) performs tasks ordinarily expected of governmentemployees. Here, the Legislature has directed the Subcommittee toperform a specific service and to report its results to theLegislature by a particular date. Such a statutorily mandatedevaluation of state programs might otherwise be the responsibilityof DSS or other executive branch employees. Likewise, the UniformEnforcement Subcommittee, in creating law enforcement guidelines,appears to be performing a task ordinarily expected of governmentemployees. This is because, pursuant to statute, the developmentof domestic violence response guidelines would be theresponsibility of local law enforcement agencies themselves. SeeSt. 1990 c. 403, s.15. We find that the services expected of thesubcommittees go well beyond merely providing a variety of privateviewpoints.

Finally, with regard to the work product of the AdvisoryCommission and its subcommittees, we find significant formality.For example, several subcommittees have drafted extensiveguidelines for use and implementation by various public agencies,including DPH, the Commonwealth's district attorneys and state andlocal police. In contrast, in EC-COI-93-22, the advisory councilanalyzed various industries and crafted reports, but such reportsand the recommendations contained therein did not amount to policesor programs which were readily adopted and implemented by executivebranch agencies. Here, the Advisory Commission's work product inthe nature of guidelines is specifically created with input from,and for adoption by, public agencies.

Applying all of the foregoing factors, we conclude thatthe Advisory Commission is an instrumentality of the Governor's Office.With the exception of the Advisory Commission's discretionarycreation by Executive Order, we find that the Advisory Commissionfunctions in a manner resembling a governmental agency rather thana mere "sounding board" to provide a variety of private viewpoints.We therefore conclude that Advisory Commission members who are notalready state employees will be considered state employees forpurposes of G.L. c. 268A. However, because Advisory Commissionmembers are not compensated for their services, the "privatemembers" will be considered special state employees.[8]

2. Limitations Imposed by G.L. c. 268A

As special state employees, private members of the AdvisoryCommission will be impacted by the conflict of interest law in aless significant manner than those members who are otherwiseemployed by the Commonwealth. Sections 4, 6 and 7 of G.L. c. 268Aare relevant in this case.

Section 4

Section 4(a) of G.L. c. 268A prohibits a state employee fromdirectly or indirectly receiving or requesting compensation fromanyone other than the Commonwealth or a state agency, in relationto any particular matter in which the Commonwealth or a stateagency is a party or has a direct and substantial interest.Section 4(c) prohibits a state employee from acting as agent orattorney for anyone other than the Commonwealth or a state agencyin connection with any particular matter in which the Commonwealthor a state agency is a party or has a direct and substantialinterest.

A special state employee is subject to the prohibitions ofs.4(a) and (c) only in relation to a particular matter (1) in whichhe has at any time participated[9] as a state employee, or (2)which is or within one year has been a subject of his officialresponsibility,[10] or (3) which is pending in the state agency inwhich he is serving. Clause (c) is applicable only to a specialstate employee who serves on more than sixty days during a periodof three hundred and sixty-five consecutive days.

Under s.4(c), for example, a private member would beprohibited from representing a private party before the AdvisoryCommission, as such representation would be in connection with aparticular matter for which the Advisory Commission members haveofficial responsibility. However, private members will not beprecluded from appearing before state agencies other than theAdvisory Commission with regard to matters unrelated to the work ofthe Advisory Commission. As for s.4(a), a private member could notbe privately compensated to prepare a report or other documents forsubmission to the Commission or any of its subcommittees. See EC-COI-93-5 (state employee may not receive private compensation formaking submissions to state agency). Again, we emphasize that thes.4(a) restriction on compensation would apply only with regard tomatters before the Advisory Commission. A private member would nottherefore be prohibited from preparing documents for submission toother state agencies. Other than the limited situation describedabove,

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however, it is unlikely that a private member will receive privatecompensation in relation to any particular matters in which he hasparticipated or which are under his official responsibility as anAdvisory Commission member, thereby avoiding issues under s.4(a).Rather, we think that the Advisory Commission's tasks are morelikely to raise issues under s.6 of the conflict of interest law.

Section 6

Section 6 of G.L. c. 268A prohibits a state employee fromparticipating in a particular matter in which the employee, animmediate family member, or a business organization in which he isserving as an officer, director, trustee, partner or employee hasa direct or reasonably foreseeable financial interest. Under thissection, for example, a private member who is employed by a"business organization" (even if a non-profit organization) wouldbe subject to the s.6 restriction to the extent that the AdvisoryCommission takes up matters in which his employer has a direct andimmediate, or a reasonably foreseeable, financial interest.[11] Wenote that s.6 requires a state employee to notify his appointingauthority in writing of the financial interest. The appointingauthority must then (a) assign the matter to another employee, (b)assume responsibility for the matter, or (c) make a writtendetermination to be filed with the State Ethics Commission that theinterest is not so substantial as to be deemed likely to affect theintegrity of the services which the Commonwealth may expect fromthe state employee. Copies of both the notification to theappointing authority and the appointing authority's determinationmust be forwarded to the State Ethics Commission.

Therefore, if a matter affecting the financial interests of aprivate member, or the private organization by which he isemployed, is taken up by the Advisory Commission, that privatemember must abstain, make a disclosure to the Governor and awaitfurther instruction from the Governor concerning his participation.For example, if the Batterers' Treatment Subcommittee isconsidering whether or not to require a certain number of licensedprofessional staff members for state certification of a treatmentprogram, a private member who is employed by an organizationproviding such a treatment program will be subject to the s.6restriction. Similarly, a s.6 issue may be raised if theTransition Subcommittee is considering a plan to supplement currentshelter services through DSS contracts with private providers.Under such a scenario, a private member who is employed by anagency which is likely to seek such a state contract will need tocomply with the s.6 requirements. To the extent that a privatemember is aware of matters likely to be taken up by the AdvisoryCommission or one of its subcommittees, and in which his privateemployer will have a reasonably foreseeable financial interest,that member may desire to seek a determination in advance from theGovernor permitting his participation in those matters when theyarise.

Section 7

Section 7 prohibits a state employee from having a financialinterest, directly or indirectly, in a contract made by a stateagency, in which the Commonwealth or any state agency is aninterested party, unless an exemption applies. Section 7 isimplicated if a private member is to receive compensation thatderives from a contract with a state agency. As a special stateemployee, however, such a private member may have an interest in astate contract as long as the contract is with a state agency inwhose activities he neither participates nor has officialresponsibility for as an Advisory Commission member. Where aprivate member has a financial interest in a contract with a stateagency with which he has no dealings as a Commission member, thes.7 prohibition may be overcome by filing with the EthicsCommission a disclosure of the financial interest, in compliancewith an exemption contained in s.7(d). For example, s.7(d) wouldbe applicable where an Advisory Commission member employed by aprivate university has a financial interest in a teacher trainingcontract between the university and the Department of Education("DOE"). As long as the Advisory Commission does not participatein or have official responsibility for the activities of DOE, adisclosure pursuant to s.7(d) will overcome the s.7 prohibition.In contrast, where a private member has a direct or indirectfinancial interest in a contract with a state agency with which theCommission closely works, such as DPH, the exemption provided bys.7(e) must be utilized. In addition to a disclosure to the StateEthics Commission, that exemption requires approval by theGovernor.[12]

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[*] Pursuant to G.L. c. 268B, s.3(g), the requesting personhas consented to the publication of this opinion with identifyinginformation.

The governor's domestic violence policy commissiontransition subcommittee shall evaluate research regardingthe effectiveness of existing programs and their abilityto meet required standards, and gaps and services tospecial needs populations such as cultural and linguisticminorities, mentally ill and substance abusing batteredwomen, as well as teens in violent relationships anddevelop program recommendations to address these needs.Such evaluations shall be provided to the house andsenate committees on ways and means not later thanOctober first, nineteen hundred and ninety-four. St.1994, c. 126, s.51.

[3] Pursuant to 1990 Mass. Acts. c. 403, s.15, each lawenforcement agency is required to adopt local guidelines for lawenforcement response to domestic violence. In addition, under G.L.c. 209A, s.6, as amended by St. 1990, c. 403, s.7, uponinvestigating an incident of domestic violence, police are requiredto file a written incident report in accordance with local lawenforcement agency standards.

[4] Pursuant to G.L. c. 6, s.156, the MCCJ, among otherfunctions, is charged with encouraging and disseminating lawenforcement and criminal justice information.

[5] A state agency is defined as "... any department of astate government including the executive, legislative or judicial,and all councils thereof and thereunder, and any division, board,bureau, commission, institution, tribunal or other instrumentalitywithin such department and any independent state authority,district, commission, instrumentality or agency, but not an agencyof a county, city or town." G.L. c. 268A, s.1(p).

[6] Approximately 60% of the current Advisory Commissionmembers are state employees.

[7] Executive Order No. 357, July 8, 1993.

[8] "Special state employee," a state employee:

(1) who is performing services or holding an office,position, employment or membership for which nocompensation is provided, or

(2) who is not an elected official and

(a) occupies a position which, by its classification inthe state agency involved or by the terms of the contractor conditions of employment, permits personal or privateemployment during normal working hours, provided thatdisclosure of such classification or permission is filedin writing with the state ethics commission prior to thecommencement of any personal or private employment, or

(b) in fact does not earn compensation as a stateemployee for an aggregate of more than eight hundredhours during the preceding three hundred and sixty-fivedays. For this purpose compensation by the day shall beconsidered as equivalent to compensation for seven hoursper day. A special state employee shall be in such astatus on days for which he is not compensated as well ason days on which he earns compensation. G.L. c. 268A,s.1(o).

[11] We have previously decided that regulations themselvesare not particular matters, but that the decisions anddeterminations made during the process of promulgation areparticular matters. See EC-COI-87-34. Here, decisions anddeterminations during the process of creating statutorily requiredguidelines would be particular matters even if the guidelinesthemselves are not. To the extent that a private member's employerwill have a financial interest in those decisions anddeterminations, s.6 is relevant.

[12] Ordinarily, when a full-time state employee holds anadditional state position, an issue under s.7 arises. Here,however, because state employee members of the Advisory Commissionserve on the Commission by virtue of their primary stateemployment, we do not find that they hold more than one stateposition. See EC-COI-84-147; 84-148. In other words, those membersof the Advisory Commission who are otherwise employed by theCommonwealth have only one state contract, thereby avoiding a s.7issue.